The stars have finally aligned – you got a panel with a known defense doctor, a known applicant’s doctor, and a doctor completely unknown to both sides.  Why does that mean the stars aligned?  Because, just this once, that unknown doctor, the one left standing after the panel process, gave you a slam-dunk report!

Applicant’s counsel, unsurprisingly less than content with an attorney’s fee of 15% of nothing, has written to the Panel Qualified Medical Evaluator to request a supplemental report.  You smile to yourself as you read the applicant’s attorney’s letter, knowing that the QME is not going to budge and you’ve dodged a major bullet.

In California Workers’ Compensation practice, if something seems too good to be true, it probably is.  This goes doubly so for the defense.  Naturally, day sixty passes without the QME having produced a supplemental report, and applicant’s attorney is ready on day sixty-one with a demand for a new panel.

California Code of Regulations, title 8, § 38(a) provides a remedy for initial or follow-up comprehensive medical-legal evaluation reports not submitted within thirty days of the evaluation.  That remedy is a new panel.  But in terms of supplemental reports, governed by subsection (h), what if there is a report submitted after the sixty days allowed?

The section itself does not provide a remedy, nor is there one to be found in the regulations for late supplemental reports.  What’s the answer?  Should the applicant get a new panel?

In the case of Gwen Lloyd v. County of Alameda, the Workers’ Compensation Appeals Board adopted and incorporated the opinion of the Workers’ Compensation Judge, granting applicant’s petition for a new panel.

The facts were similar to those described above.  The WCJ recognized that no remedy specific to supplemental reports could be found in the regulation, and decided the case on policy: the anti-doctor-shopping policy offered by the defendant and the anti-delay-policy offered by the applicant.  The applicant’s policy proved the stronger, and the WCJ cited the need to speed up the process of benefits for the applicant.

In other words, if you have a QME who has given you a bad report, send him or her a supplemental report request and prepare your demand for a new panel.  If the supplemental report is not in your hands at 4:59 p.m. on day sixty, it’s time to file a demand for a new panel at 9:00 a.m. on day sixty-one.

There are a few issues raised by this case that are not addressed by the WCJ’s opinion, nor by the WCAB’s adopt and incorporate order.

Issue One – what if the applicant had received the doctor’s report on day sixty-one, read it, and then demanded a new panel on day sixty-two?  The opinion does not address the issue of whether a late report must also be un-submitted to trigger this new-found remedy of a fresh panel.

Issue Two, which doesn’t seem to concern too many minds in the Workers’ Compensation world, is the purse of the defendants.  At any given point in a case, the defense may have already paid for evaluations, supplemental reports, record reviews and depositions (not to mention the attorney time that goes along with all of these steps in the process).

Will the WCJ issue an order to disgorge these costs from the slow-responding QME?  Or must the defense now expand its reserves to account for the second, third or fourth QME until a doctor can be found whose Hippocratic oath does not commit him to making patients wait?

One way to side-step this new QME-killer is to stay on top of the QME.  If you or the other side has requested a supplemental report from a QME good for the defense, once you hit day 30, you need to send weekly letters asking for that supplemental report.

As for a QME that isn’t too friendly towards the defense, perhaps one should stay quiet until day sixty-one and then quickly file a petition for a new panel?

As an aside, the WCJ writes that she does not know the difference between a “follow-up” report and a “supplemental” report as contemplated by the regulation.

I was always under the impression that follow-up pertained to a report produced after an in-person evaluation, such as when the QME evaluates an applicant, and finds applicant is not yet permanent and stationary.

The supplemental reports are document-based, with no interaction between applicant and the QME, and produced in response to a letter asking additional questions.  Thus, the former is due in thirty days and the latter in sixty.

Does anyone have a different take?  Comment or shoot me an e-mail with your thoughts:  gregory.grinberg@htklaw.com.

These finer issues are sure to be re-litigated in the future.  In the meantime, however, your humble author wishes you a sharp eye on your case-file, a wary sentry on your calendar, and, as always, good hunting.